DECISION AND ORDER

This case is an appeal by the Texas Injury Clinic (APetitioner) from a decision of an independent review organization (AIRO) on behalf of the Texas Workers= Compensation Commission (ACommission) in a dispute regarding medical necessity for chiropractic treatment. The IRO found that the insurer, Liberty Mutual Insurance Company (ARespondent), properly denied reimbursement for physical therapy that Petitioner administered between January 15 and July 3, 2003, to a claimant suffering from a back and shoulder injury.

Petitioner challenged the decision on the basis that the treatment at issue was, in fact, medically necessary, within the meaning of ” 408.021 and 401.011(19) of the Texas Workers= Compensation Act (the Act), TEX. LABOR CODE ANN. ch. 401 et seq.

This decision agrees with that of the IRO, finding that reimbursement of Petitioner for the disputed services should be denied.

JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to ‘ 413.031 of the Act. The State Office of Administrative Hearings (ASOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to ‘ 413.031(k) of the Act and TEX. GOV’T CODE ANN. ch. 2003. No party challenged jurisdiction or venue.

STATEMENT OF THE CASE

The hearing in this docket was convened on April 8, 2004, at SOAH facilities in the William P. Clements Building, 300 W. 15^th St., Austin, Texas. Administrative Law Judge (AALJ) Mike Rogan presided. Petitioner was represented by Kevin Strathdee, D.C., who appeared by telephone. Respondent was represented by Kevin Franta, Attorney. Both parties presented evidence and argument. The record remained open until April 22, 2004, to allow the parties to submit additional documents and comments, if necessary.^[1]

The record revealed that on ________, the claimant suffered a compensable injury to her right side, including her shoulder and lower back, when she tripped and fell. In consequence, she ultimately underwent arthroscopic shoulder surgery (decompression and debridement) on October 30, 2002. Post-surgical rehabilitation combined various injections with physical therapy supervised by Petitioner. When Petitioner subsequently billed Respondent (the insurer for the claimant’s employer) for medical services in the case from January 15 through July 3, 2003, Respondent denied reimbursement on the grounds that the treatment had been medically unnecessary.

Petitioner sought medical dispute resolution through the Commission. The IRO to which the Commission referred the dispute issued a decision on November 14, 2003, concluding that none of the services in dispute B except for a work hardening program B had been justified as medically necessary by specific documentation or by the current literature.^[2] With respect to the active and passive therapeutic modalities at issue, the IRO stated:

. . . [T]hese are not indicated post-injection therapy in any current literature available. The patient had undergone such treatments prior to being sent for intercostals and ESI injections. The fact that she had to be sent for injection therapy indicates the evident failure of the treatment [regimen] and, as such, resuming the regimen after injections cannot be justified medically.

The Commission’s Medical Review Division (AMRD) reviewed the IRO’s decision and, on November 19, 2003, issued its own decision confirming that the disputed services (with the exception of the work hardening program) were not medically necessary and should not be reimbursed. Petitioner then made a timely request for review of the IRO and MRD decisions before SOAH.

THE PARTIES= EVIDENCE AND ARGUMENTS

A. PETITIONER

Petitioner argued that the treatment at issue was necessary, based upon generally accepted standards of practice, and that it was particularly useful in conjunction with the injection therapy provided the claimant during rehabilitation from surgery.

Julio Frajardo, D.C., who practices with Petitioner and treated the claimant, testified that the treatment at issue conformed with a medical orthopedic protocol developed by Wilk and Andrews, incorporating both shoulder-decompression and rotator-cuff-tear protocols. According to Dr. Frajardo, the type of short, intense therapy program provided to the claimant is indicated for post-injection care. With respect to the therapy directed specifically at the patient’s recurrent lower-back pain, Dr. Frajardo noted that diagnostic analysis, including an MRI, showed part B but not all B of the claimant’s lumbar condition to be attributable to degenerative conditions unrelated to the injury. He concluded that the back treatment in question furthered the goal of strengthening the patient’s lower back and facilitating her return to work.

Linden Dillin, M.D., the board-certified orthopedic surgeon who performed the claimant’s shoulder operation in this case, testified that Petitioner’s clinic performs consistently high-quality

work. Dr. Dillin indicated that surgery such as that undergone by the claimant typically entails at least two months of supervised rehabilitative therapy. In at least half of all cases, including the

climant=s, a third month is needed. Dr. Dillin said that he prescribed a third month for the claimant (which represents part of the services in dispute) after examining her in early January of 2003 and finding that she was Anot doing as well as she could do, since she continued to suffer discomfort at the extreme limit of her shoulder’s range of motion (AROM).

Petitioner also presented the testimony of Ved Aggarwal, M.D., a board-certified anesthesiologist and pain management specialist who provided the claimant a series of three epidural steroid injections for lower back pain, beginning in mid-February of 2003. After each injection, Dr. Aggarwal recommended two weeks of further therapy (three session per week), administered by Petitioner. He described such combination of injections and therapy as a generally accepted practice and said that it proved very effective in this case, with the patient showing progressive improvement.

B. RESPONDENT

Respondent presented the testimony of Csey Cochran, D.O., who is board-certified in family and occupational medicine, with a specialty in disability evaluation. After reviewing the records, Dr. Cochran characterized the claimant’s condition as a common shoulder and back injury resulting from a fall. The shoulder injury, in particular, seemed to be a Astandard case, since it did not even involve a full tear of the rotator cuff. According to Dr. Cochran, the normal course of rehabilitation in such a case is 12 to 14 weeks of supervised therapy (up to 24 total visits) B or a little longer for someone who must function at peak level, such as an athlete. In this case, after just about 10 weeks of therapy, an examination of the claimant on January 9, 2003, showed her shoulder’s ROM to be Aessentially normal, in Dr. Cochran’s view B that is, the exam reflected only a 20 percent deficit in the category of Ainternal rotation, which Dr. Cochran considered as functionally not problematic.

After such test results, asserted Dr. Cochran, no apparent reason existed for further supervised therapy, since the main objective of post-surgical rehabilitation is to restore ROM. Once

that is accomplished, further strengthening of the affected shoulder can be most reasonably achieved through a home exercise program.

With respect to the disputed therapy for claimant’s lower back, Dr. Cochran could perceive no rationale for reapplying such modalities to an injury that had occurred almost a year earlier. He testified that no medical literature supports such belated therapy for a lumbar sprain/strain or the use of such therapy as a follow-up adjunct to injections.

In questioning ssertions that the claimant showed objective manifestations of improvement concurrent with the disputed treatment, Dr. Cochran strongly criticized the functional capacity evaluation (AFCE) performed on the claimant in April of 2003, which served as a baseline for measuring her response to much of the disputed treatment. The report on the FCE conceded that the claimant’s performances on most tests Awere sub-maximal in effort. Dr. Cochran also noted that the report indicated the claimant’s change in heart rate during the testing to have been insignificant and inconsistent with the work being performed. He concluded that the patient was giving practically no effort during physiological monitoring and that the FCE thus provides almost no valid information.

Dr. Cochran also cited a peer review in this case by Hugh Ratliff, M.D., who examined the claimant on March 23, 2003, and concluded that she exhibited minimal symptoms at that time, requiring no further treatment (other than a home exercise program). Dr. Ratliff noted that the patient’s diagnosed lumbar strain received appropriate early treatment following her injury, leading to a nine-month period without complaints of lower back pain. Dr. Ratliff summarized as follows:

The fact that she . . . has begun having pain again in her lumbar spine, I feel is simply related to the examinee’s degenerative changes in her back. Her minimal lumbar complaints are related to degenerative arthritis which is a disease of life. Her lumbar strain has long since been treated and MMI has long since passed, as far as any kind of medical treatment of her lumbar, thoracic, or cervical areas.

In his examination of the claimant, Dr. Ratliff documented normal lumbar ROM and no strength deficit in the lower extremities.

ANALYSIS

Credible expert testimony was presented on both sides of this dispute, undoubtedly reflecting honest differences of opinion about the medical necessity of the services in question. However,

Petitioner bears the burden of proving that the factual basis or analytical rationale for the IRO’s decision in this case was invalid. In the ALJ’s view, it has not discharged that burden.

Although its conclusions were expressed somewhat elliptically, the IRO made reasonably clear its rationales for decision in this case: i.e., 1) no authoritative medical literature supports the types of treatment at issue in this case, and 2) lengthy repetition of such treatment is unwarranted where an initial course of it either has proven ineffective or has already achieved its expected results. The evidence offered by the Petitioner did not effectively address these positions. While the Petitioner’s witnesses contended in general terms that the disputed treatment was consistent with accepted medical practice, they provided no specific explanation of how the treatment satisfied established protocols or principles. In stating that the claimant received additional shoulder therapy after mid-January of 2003 because she was not yet performing Aas well as she could, Dr. Dillin did not really provide a reasoned answer to Dr. Cochran’s persuasive argument that post-operative therapy had by that time already achieved its basic purpose B the restoration of normal ROM B and that further incremental improvement in strength and ease of motion could most reasonably be achieved through home exercise.^[3] Similarly, Dr. Aggarwal’s general conclusion that the claimant’s back ultimately responded well to a combination of injections and therapy did little to deflect the IRO’s observation that the care providers, after prescribing extensive therapy, found it necessary to resort to a different treatment regimen (i.e., injections) B thus suggesting that the continued subsequent use of therapy as an adjunct may have been superfluous.

CONCLUSION

The ALJ finds that, under the record provided in this case, the medical services at issue have not been shown to be medically necessary. Reimbursement for these services should be denied, accordingly, as initially determined by the IRO.

FINDINGS OF FACT

1. On ________, claimant suffered an injury to her right side, including her shoulder and lower back, that was a compensable injury under the Texas Worker’s Compensation Act (the Act), TEX. LABOR CODE ANN. ‘ 401.001et seq.
2. The claimant’s injury ultimately necessitated arthroscopic shoulder surgery (decompression and debridement) on October 30, 2002.
3. Post-surgical rehabilitation combined various injections with physical therapy supervised by practitioners with Texas Injury Clinic (“Petitioner”). Treatment included office visits, joint mobilization, myofascial release, kinetic activities, aquatic therapy, and other therapeutic procedures.
4. Petitioner sought reimbursement for services noted in Finding of Fact No. 3 B including care provided on dates of service from January 15 through July 3, 2003 B from Liberty Mutual Insurance Co. (“Respondent”), the insurer for claimant’s employer.
5. The Respondent denied the requested reimbursement.
6. Petitioner made a timely request to the Texas Workers= Compensation Commission (“Commission”) for medical dispute resolution with respect to the requested reimbursement.
7. The independent review organization (“IRO”) to which the Commission referred the dispute issued a decision on November 14, 2003 B and concluded that none of the services in dispute (except for a work hardening program that was not at issue in this administrative action) had been justified as medically necessary by specific documentation or by current medical literature.
8. The Commission’s Medical Review Division reviewed and concurred with the IRO’s determination in a decision dated November 19, 2003, in dispute resolution docket No. M5-04-0113-01.
9. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings (“SOAH”), seeking review and reversal of the MRD decision regarding reimbursement.
10. The Commission mailed notice of the hearing’s setting to the parties at their addresses on January 12, 2004. The hearing was subsequently continued to a later date, with proper notice to the parties.
11. A hearing in this matter was convened before SOAH on April 8, 2004. Petitioner and Respondent were represented.
12. The claimant’s shoulder injury presented a generally “standard case,” since it did not even involve a full tear of the rotator cuff. The normal course of post-surgical rehabilitation in such a case is 12 to 14 weeks of supervised therapy (up to 24 total visits) B or a little longer for someone who must function at peak level, such as an athlete (a category that does not include the claimant).
13. Examination of the claimant on January 9, 2003 B 10 weeks after her shoulder surgery and after about 10 weeks of supervised post-surgical therapy B showed her shoulder’s range of motion to be essentially normal.
14. Petitioner demonstrated nothing in the claimant’s condition or in current standards of practice or medical literature to justify the disputed medical services, as noted in Findings of Fact Nos. 3, 4, and 7.

CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to ‘ 413.031(k) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMINISTRATIVE CODE (“TAC”) §’ 133.305(g) and §§ 148.001-148.028.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC ‘ 148.21(h).
6. Based upon the foregoing Findings of Fact, the disputed treatments for the claimant, noted in Findings of Fact Nos. 3, 4, and 7, do not represent elements of health care medically necessary under § 408.021of the Act.
7. Based upon the foregoing Findings of Fact and Conclusions of Law, the findings and decisions in this matter of the IRO, issued on November 14, 2003, and of the MRD, issued on November 19, 2003, were correct; Petitioner’s request of reimbursement for services noted in Findings of Fact Nos. 3, 4, and 7 should be denied.

ORDER

IT IS THEREFORE, ORDERED that the appeal of Texas Injury Clinic, seeking reimbursement for therapeutic services performed from January 15 through July 3, 2003, be denied, in accordance with the findings and decision of the independent review organization issued in this matter on November 14, 2003, which concluded that the disputed services had not been shown to be medically necessary.

Signed May 5, 2004.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The stff of the Commission formally elected not to participate in this proceeding, although it filed a general AStatement of Matters Asserted with the notice of the hearing.↑
2. The IRO described the medicl services in dispute before it as ATherapeutic procedure, myofascial release, office established outpatient, established outpatient L2 Prob FOC H&E, joint mobilization, kinetic activities, neuromuscular re-education, special report, medical procedure, aquatic therapy, unusual travel, work hardening/conditioning, for dates of service 01/15/03 through 07/03/03. The work hardening/conditioning program is not at issue in this proceeding.↑
3. In addition, while witnesses for both parties agreed that therapy typically might be appropriate for up to three months following surgery of the type claimant underwent, the record does not clearly distinguish between services related specifically to such shoulder rehabilitation and services attributable to other aspects of the claimant’s injury.↑